ANNEX XI REFERRED TO IN ARTICLE 5.3 (NATIONAL TREATMENT) AND ARTICLE 5.4 (RESERVATIONS) REGARDING RESERVATIONS

Transcription

1 ANNEX XI REFERRED TO IN ARTICLE 5.3 (NATIONAL TREATMENT) AND ARTICLE 5.4 (RESERVATIONS) REGARDING RESERVATIONS

2 ANNEX XI REFERRED TO IN ARTICLE 5.3 (NATIONAL TREATMENT) AND ARTICLE 5.4 (RESERVATIONS) REGARDING RESERVATIONS APPENDIX 1: APPENDIX 2: APPENDIX 3: APPENDIX 4: APPENDIX 5: RESERVATIONS BY PERU RESERVATIONS BY ICELAND RESERVATIONS BY LIECHTENSTEIN RESERVATIONS BY NORWAY RESERVATIONS BY SWITZERLAND

3 APPENDIX 1 TO ANNEX XI REGARDING RESERVATIONS BY PERU Headnote 1. Pursuant to Article 5.4 (Reservations) of this Agreement, Peru s Schedule sets out the reservations taken by Peru with respect to existing measures or specific sectors, sub-sectors or activities, for which it may maintain existing, or adopt new or more restrictive measures that do not conform with obligations imposed by Article 5.3 (National Treatment) of this Agreement. 2. Each reservation sets out the following elements: (a) (b) (c) Sector, referring to the general sector in which the reservation is taken; Sub-Sector, referring to the specific sector in which the reservation is taken; Measures, identifying the laws, regulations or other measures, for which the reservation is taken. A measure cited in the Measures element includes, as the case may be: (i) (ii) the measure as amended, continued or renewed as of the date of entry into force of this Agreement and any subordinate measure adopted or maintained under the authority of and consistent with the measure; or the reference to any existing or future measure, as described in the Description element; and (d) Description, setting out, as the case may be: (i) (ii) the non-conforming aspects of the existing measures for which the reservation is taken. It may also set out commitments for liberalisation; or the scope of the sector, sub-sector or activities covered by the reservation. 3. In the interpretation of a reservation: (a) all elements of the reservation shall be considered;

4 - 2 - (b) (c) in entries 1 2, the Measures element shall prevail over all other elements, unless any discrepancy between the Measures element and the other elements considered in their totality is so substantial and material that it would be unreasonable to conclude that the Measures element should prevail, in which case the other elements shall prevail to the extent of that discrepancy; in entries 3 6, the Description element shall prevail over all other elements.

5 - 3 - PERU All sectors Measures: Constitución Política del Perú (1993), artículo 71. Description: Decreto Legislativo N 757, Diario Oficial El Peruano del 13 de noviembre de 1991, Ley Marco para el Crecimiento de la Inversión Privada, Artículo 13. No foreign national or entity organised or owned in whole or part, directly or indirectly, by foreign nationals may acquire or own, directly or indirectly, by any means, land or water (including a mine, forest land, or energy sources) located within 50 kilometers of the Peruvian border. Exceptions may be authorised by a Supreme Decree approved by the Council of Ministers in conformity with law in cases of expressly declared public necessity. For each case of acquisition or possession within the referred area, the investor shall hand in the correspondent request to the relevant Ministry, pursuant to the rules in force. For example, authorisations of this kind have been given in the mining sector.

6 - 4 - PERU All sectors Measures: Description: Decreto Legislativo N 689, Diario Oficial El Peruano de 05 de noviembre de 1991, Ley para la Contratación de Trabajadores Extranjeros, Artículos 1, 3, 4, 5 (modificado por Ley N 26196) y 6. All employers in Peru, independently of their activity or nationality, shall give preferential treatment to nationals when hiring its employees. Foreign natural persons may not represent more than 20 per cent of the total number of employees of an enterprise, and their pay may not exceed 30 per cent of the total payroll for wages and salaries. These percentages will not apply in the following cases: when the foreign nationals providing services are the spouse, parent, child, or sibling of a Peruvian national; foreign employees working for foreign companies providing international land, air and water transport under a foreign flag and registration; foreign employees of multinational service companies or banks, subject to the laws governing specific case; foreign investors, whenever its investment permanently maintains in Peru at least 5 tributary tax units during the life of their contract 1 ; artists, athletes or other service-providers engaged in public performances in Peruvian territory, for a maximum of three months a year; foreign nationals with immigrant visa; foreign nationals whose countries have labour reciprocity or double nationality agreements with Peru; and foreign personnel providing services in the country on behalf of bilateral or multilateral agreements celebrated by the Peruvian Government. 1 The Tributary Tax Unit (UIT) is an amount of reference that is used in the tributary norms in order to maintain in constant values the taxes basis, deductions, affectation limits and other aspects of the tributes that the legislator considers convenient.

7 - 5 - Employers may request waivers for the percentages related to the number of foreign employees and their share of the company s payroll in those cases involving: specialised professional or technical personnel; directors or management personnel business activities; for new or converted teachers hired for post secondary education, or for foreign private elementary and high schools; or for foreign language teaching in local private schools; or for specialised language centers; personnel working for public or private companies with contractual agreements with Public institutions; and in any other case determined by supreme decree pursuant to specialisation, qualification or experience criteria.

8 - 6 - PERU Measures: Description: Indigenous Communities, Peasant, Native, and Minority Affairs Any existing or future measure, as described below. Peru reserves the right to adopt or maintain any measure according rights or preferences to socially or economically disadvantaged minorities and ethnic groups. For purposes of this entry, ethnic groups means: indigenous and native communities; minorities includes peasant (campesinos) communities.

9 - 7 - PERU Measures: Description: Fishing Any existing or future measure, as described below. Peru reserves the right to adopt or maintain any measure relating to artisanal fishing.

10 - 8 - PERU Measures: Description: Handicraft Industries Any existing or future measure, as described below. Peru reserves the right to adopt or maintain any measure relating to the design, distribution, retailing, or exhibition of handicrafts that are identified as Peruvian handicrafts.

11 - 9 - PERU Measures: Description: Audio-Visual Industry Publishing Music Any existing or future measure, as described below. Peru may adopt or maintain any measure that affords a person of another Party the treatment that is afforded by that Party to Peruvian persons in the audio-visual, publishing and music sectors.

12 APPENDIX 2 TO ANNEX XI REGARDING RESERVATIONS BY ICELAND ICELAND Sub-sector: - of All sectors Law No. 138/1994 Respecting Private Limited Companies, Law No. 2/1995 Respecting Public Limited Companies, Law No. 34/1991 on Investment by Non-Residents in Business Enterprises The majority of the founders of a private limited company or a public limited company must either be resident in Iceland, in another member state of the European Economic Area, in another member state of the European Free Trade Association or in the Faroe Islands. The Minister of Commerce can grant exemptions from these restrictions. The manager(s) and at least half the board of directors of a private limited company or a public limited company must either be resident in Iceland, in another member state of the European Economic Area, in another member state of the European Free Trade Association or in the Faroe Islands. The Minister of Commerce can grant exemptions from these restrictions. To secure that the legal venue of the majority of the board of directors and managers is within Icelandic jurisdiction.

13 - 2 - ICELAND Sub-sector: - of All sectors Law No. 19/1966 on the Right to Own and Use Real Estate, Law No. 34/1991 on Investment by Non-Residents in Business Enterprises Only Icelandic citizens and Icelandic legal entities and citizens and legal entities from another member state of the European Economic Area, another member state of the European Free Trade Association or from the Faroe Islands are allowed to own real estate in Iceland unless the ownership and use is linked to an investment in real estate pertaining to the business activity of the investor. The same applies to the hiring of a real estate if the duration of the lease lasts for more than 3 years. These restrictions do not apply to a non-eea citizen who has been residing in Iceland for at least five years. The Minister of Justice can grant exemptions from these restrictions. Fluctuations in real estate prices due to possible excess foreign demand can adversely affect the domestic market for housing and summer houses (secondary homes).

14 - 3 - ICELAND Sub-sector: of Fisheries Fishing, whaling Law No. 22/1998 on the Fishing and Fish processing of Foreign Vessels in Iceland s Economic Zone, Law No. 34/1991 on Investment by Non-Residents in Business Enterprises, Law No. 26/1949 on Whaling Only the following may conduct fishing operations within the Icelandic fisheries jurisdiction: (a) (b) Icelandic citizens and other Icelandic persons. Icelandic legal persons which are wholly owned by Icelandic persons or Icelandic legal persons which: (i) (ii) are controlled by Icelandic entities; are not under more than 25 per cent ownership of foreign residents calculated on the basis of share capital or initial capital. However, if the share of an Icelandic legal person in a legal person conducting fishing operations in the Icelandic fisheries jurisdiction or fish processing in Iceland is not above five per cent, the share of the foreign resident may be up to 33 per cent; (iii) are in other respects under the ownership of Icelandic citizens or Icelandic legal persons controlled by Icelandic persons. The relative economic importance of the fishing industry for Iceland, with fish and fish products constituting around half of the country s foreign earnings, as well as Iceland s determination to maintain a sustainable yield from its fishing stocks. The control and surveillance regarding the preservation of Icelandic fish stocks needs to be under Icelandic jurisdiction.

15 - 4 - ICELAND Sub-sector: of Fisheries Fish Processing Law No. 34/1991 on Investment by Non-Residents in Business Enterprises Only the following may own or run enterprises engaged in fish processing in Iceland: (a) (b) Icelandic citizens and other Icelandic persons. Icelandic legal persons which are wholly owned by Icelandic persons or Icelandic legal persons which: (i) (ii) are controlled by Icelandic entities; are not under more than 25 per cent ownership of foreign residents calculated on the basis of share capital or initial capital. However, if the share of an Icelandic legal person in a legal person conducting fishing operations in the Icelandic fisheries jurisdiction or fish processing in Iceland is not above five per cent, the share of the foreign resident may be up to 33 per cent; (iii) are in other respects under the ownership of Icelandic citizens or Icelandic legal persons controlled by Icelandic persons. Fish processing in this context is freezing, salting, drying and any other process used to initially preserve fish and fish products, including melting and meal processing. This reservation does not apply to secondary fish processing. The reservation on fish processing is an integral part of retaining control in the field of fishing and whaling. The relative economic importance of the fishing industry for Iceland, with fish and fish products constituting around half of the country s foreign earnings, as well as Iceland s determination to maintain a sustained yield from its fishing stocks. The control and surveillance regarding the preservation of Icelandic fish stocks needs to be under Icelandic jurisdiction.

16 - 5 - ICELAND Subsector: Legal source or authority of the measure: Fisheries Fish Auctioning Law No. 79/2005 on the Auctioning of Fish Only Icelandic citizens and Icelandic legal entities and citizens and legal entities from another member state of the European Economic Area, from another member state of the European Free Trade Association or from the Faroe Islands are allowed to own and manage enterprises engaged in fish auctioning in Iceland. The reservation on fish auctioning is an integral part of retaining control in the field of fishing and whaling. The relative economic importance of the fishing industry for Iceland, with fish and fish products constituting around half of the country s foreign earnings, as well as Iceland s determination to maintain a sustained yield from its fishing stocks. The control and surveillance regarding the preservation of Icelandic fish stocks needs to be under Icelandic jurisdiction.

17 - 6 - ICELAND Sub-sector: of Purpose or Motivation of the Measure: Aviation Air transport Law No. 34/1991 on Investment by Non-Residents in Business Enterprises Only Icelandic citizens and legal entities, and citizens and legal entities from another member state of the European Economic Area, from another member state of the European Free Trade Association or from the Faroe Islands can own more than 49 per cent of the shares of an enterprise engaged in air transport. The need for extensive services in a small home market call for specific regulations and home country control.

18 - 7 - ICELAND Sub-sector: of Purpose or Motivation of the Measure: Energy Energy production and distribution Law No. 34/1991 on Investment by Non-Residents in Business Enterprises Only Icelandic citizens and legal entities, and citizens and legal entities from another member state of the European Economic Area, from another member state of the European Free Trade Association or from the Faroe Islands, can own the right to harness hydroelectric and geothermal power other than for own personal home use. The same applies to investment in enterprises engaged in power production and power distribution. Apart from the fish stock, hydroelectric power and geothermal power are Iceland s most important natural resources. Their utilisation need to be centrally administered through licensing and co-generation agreements. The power production and power distribution are public utilities which to a large degree operate as public monopolies.

19 APPENDIX 3 TO ANNEX XI REGARDING RESERVATIONS BY LIECHTENSTEIN LIECHTENSTEIN Sub-sector: - of All sectors Gewerbegesetz (Act on Commercial Law) of 12 December 1969, LR (Systematic Collection of Liechtenstein Law) 930.1, and relevant laws as referred to in paragraph 1 of Article 2 of that Act, as well as relevant Parliament or Government decisions. The establishment of a commercial presence by a juridical person (including branches) is subject to the requirement that no objection for reasons of national economy is made (balanced proportion of national and foreign capital; balanced ratio of foreigners in comparison with the number of resident population; balanced ratio of total number of jobs in the economy in comparison with the number of the resident population; balanced geographic situation; balanced development of the national economy, between and within the sectors). To ensure a balanced development of the national economy taking into account the specific geographic situation of the country, its limited resources and the small labour market.

20 - 2 - LIECHTENSTEIN Sub-sector: of All sectors Gewerbegesetz (Commercial Law Act) of 12 December 1969, LR 930.1; Personen- und Gesellschaftsrecht (Company Law) of 20 January 1926, LR The establishment of a commercial presence by an individual is subject to the requirement of prior residence during a certain period of time and of permanent domicile in Liechtenstein. The establishment of a commercial presence by a juridical person (including branches) is subject to the following requirements: At least one of the managers has to fulfil the requirements of prior residence during a certain period of time and of permanent domicile in Liechtenstein. The majority of the administrators (authorized to manage and represent the juridical person) must be residents in Liechtenstein and have either to be Liechtenstein citizens or have prior residence during a certain period of time in Liechtenstein. The general and the limited partnership have to fulfil the same conditions as corporations with limited liability (juridical person). In addition the majority of the associates have to be Liechtenstein citizens or to have prior residence during a certain period of time in Liechtenstein. The Liechtenstein company law does not prohibit joint stock companies from foreseeing in their articles of incorporation the preclusion or limitation of the transfer of registered shares. To facilitate judicial proceedings.

21 - 3 - LIECHTENSTEIN Subsector: - of the measure: the measure: All sectors Agreement on the European Economic Area of 2 May 1992 (EEA Agreement) Treatment accorded to subsidiaries of third-country companies formed in accordance with the law of an EEA Member State and having registered office, central administration or principal place of business within an EEA Member State is not extended to branches or agencies established in an EEA Member State by a third-country company. Treatment less favorable may be accorded to subsidiaries of third countries having only their registered office in the territory of an EEA Member State unless they show that they possess an effective and continuous link with the economy of one of the EEA Member States. To ensure that benefits from the EEA Agreement are not automatically accorded to third countries.

22 - 4 - LIECHTENSTEIN Subsector: - of All sectors Grundverkehrsgesetz (Law on the acquisition of real estate) of 9 December 1992, LR All acquisitions of real estate are subject to authorization. Such authorization is granted only if an actual and proven requirement for living or business purposes is given and a certain period of residence has been completed. Non-residents are excluded from the acquisition of real estate. Extreme scarcity of available land. Preservation of access to real estate for the resident population and maintenance of a balanced geographic situation.

23 - 5 - LIECHTENSTEIN Sub-sector: - of Power and Energy sector Not Applicable Liechtenstein reserves the right to maintain or adopt any measure with respect to investments in the power and energy sector. Energy policy considerations and national security.

24 - 6 - LIECHTENSTEIN Sub-sector: of Air Transport Aircraft Registration Aviation Act of 15 Mai 2002, LR and Agreement between Liechtenstein and Switzerland on civil aviation of 27 January 2003, LR Aircraft may not be registered in Liechtenstein unless they are wholly owned by Liechtenstein citizens or by foreign nationals who reside in Liechtenstein and use the aircraft mainly for travel originating in Liechtenstein or Switzerland, or by companies based and registered in Liechtenstein. To ensure an effective tie between aircraft and their owners.

25 - 7 - LECHTENSTEIN Sub-sector: of Air Transport Holdings in Liechtenstein air transport companies Aviation Act of 15 Mai 2002, LR and Agreement between Liechtenstein and Switzerland concerning civil aviation of 27 January 2003, LR Access of foreign firms to commercial transport of persons and goods is governed by international agreements. In the absence of such an agreement, foreign firms may be granted concessions to operate certain commercial transport routes. To obtain such a concession, a foreign enterprise must, inter alia, have a legal residence in Liechtenstein. A foreign holding in a Liechtenstein air transport company may normally not exceed 40 per cent of the latter s share capital. Air transport policy.

26 - 8 - LIECHTENSTEIN Sub-sector: of Air Transport Assistance Services Aviation Act of 15 Mai 2002, LR (Systematic Collection of Liechtenstein Law) Liechtenstein applies European Union Directive 96/67. Airport authorities may limit the number of providers for certain services by permanent limitations or temporary measures. Article 20 of the Directive contains a reciprocity clause. Limited space for airport infrastructure. (note: to date Liechtenstein has no airport infrastructure).

27 APPENDIX 4 TO ANNEX XI REGARDING RESERVATIONS BY NORWAY NORWAY Sub-sector: - of All sectors Companies Act of 13 June 1997 No 44 (aksjeloven) and Joint Stock Public Companies Act of 13 June 1997, No 45 (allmennaksjeselskapsloven) The general manager in a joint stock company and at least half of the members of the board of directors and of the corporate assembly must be residents of Norway. The residency criteria do not apply to nationals of an EEA Member State who are permanent residents of one of these States. The Ministry of Trade and Industry may grant exemptions from this provision. The resident criteria are based on reasons of jurisdiction, in order to ensure that the persons responsible for the company's affairs are accessible.

28 - 2 - NORWAY Sub-sector: - of Power and Energy sector Repair of Transport Equipment sector Not Applicable All activities in the power and energy sector as well as in the repair of transport equipment sector shall be treated as services under this Agreement. -

29 - 3 - NORWAY Sub-sector: Legal source or authority of the measure: Real estate Secondary residences Concessions Act of 31 May 1974, No. 19 Acquisition or leasing of secondary residences by non-residents is subject to a concession. To prevent that prices in the market for secondary residences are adversely affected due to possible increases in demand from non-residents.

30 - 4 - NORWAY Subsector: - of Fishing and fish processing Regulation of Participation in Fishing Act of 16 June 1972, No 57 Economic Zone Act of 17 December 1976, No 91 The Fishing Limit Act of 17 June 1966, No 19 A concession to acquire a fishing vessel or share in a company which owns such vessels can only be given to a Norwegian citizen or a body that can be defined as a Norwegian citizen. A company is regarded as having equal rights with a Norwegian citizen when its main office is situated in Norway and the majority of the Board, including the Chair of the Board, are Norwegian citizens and have stayed in the country the last two years. Norwegian citizens also have to own a minimum of 60 per cent of the shares and have to be authorised to vote for at least 60 per cent of the votes. Ownership to the fishing fleet shall be reserved for professional fishermen. To obtain the right to own a fishing vessel, one has to have a record of active, professional fishing on a Norwegian fishing boat for at least three of the last five years. It is prohibited for other persons than Norwegian nationals or companies, as defined above, to process, pack or transship fish, crustaceans and molluscs or parts and products of these inside the fishing limits of the Norwegian Economic Zone. This applies to catches from both Norwegian and foreign vessels. Exceptions are granted under special circumstances. Resource conservation and management.

31 - 5 - NORWAY Sub-sector: - Legal source or authority of the measure: Purpose or motivation of the measure All sectors Not applicable Copyright and neighbouring rights laws and measures: i.a. royalties, levies, grants and funds. To preserve and promote linguistic and cultural diversity in Norway.

32 APPENDIX 5 TO ANNEX XI REGARDING RESERVATIONS BY SWITZERLAND SWITZERLAND Sub-sector: - of All sectors Federal Act of 30 March 1911 (Code of Obligations) supplementing the Swiss Civil Code(Systematic Collection of Federal Laws and Regulations [RS], No. 220) For a corporation (société anonyme/ Aktiengesellschaft), a corporation with unlimited partners (société en commandite par actions/ Kommanditaktiengesellschaft), a limited partnership (société à responsabilité limitée/gesellschaft mit beschränkter Haftung) and a cooperative (société cooperative/ Genossenschaft) at least one member of the governing body of the legal person or another person with the right to represent the legal person must be domiciled in Switzerland. A foreign legal person may also establish one or several branch offices in Switzerland. At least one person of the branch office with the right to represent the branch office must be domiciled in Switzerland. To facilitate judicial proceedings.

33 - 2 - SWITZERLAND Sub-sector: - of All sectors Federal Act of 16 December 1983 on the Acquisition of Real Estate by Persons Abroad (RS ) Acquisition of real estate is subject to authorisation by the relevant cantonal authority when the acquirer does not use the property to operate a permanent establishment. Scarcity of available land.

34 - 3 - SWITZERLAND Sub-sector: of Energy Oil Prospection and Exploitation Concordat of 24 September 1955 on Oil Prospecting and Exploitation The inter-cantonal agreement (among ten cantons) stipulates that oil concessions may be granted only to companies that are at least 75 per cent Swiss-owned. Other cantons apply similar restrictions. Energy policy considerations and national security.

35 - 4 - SWITZERLAND Sub-sector: of Energy Nuclear energy Federal Act of 21 March 2003 on Atomic Energy (RS 732.1) A concession to construct and operate nuclear facilities is granted only to a corporation, a cooperative or a legal person of public law. A foreign company must have a registered subsidiary in Switzerland. Without prejudice to international obligations, the Federal Council may refuse the concession to a foreign company if its home state does not grant reciprocity. Energy policy considerations and national security.

36 - 5 - SWITZERLAND Sub-sector: of Energy Hydroelectric power Federal Act of 22 December 1916 on the Uses of Hydroelectric Power (RS ) When granting concessions, cantons take public interest considerations into account (they may in particular require the concession-holder to have its registered office in the relevant canton). Energy policy considerations and national security.

37 - 6 - SWITZERLAND Sub-sector: of Energy Pipelines Federal Act of 4 October 1963 on Pipelines for Liquid or Gaseous Fuels (RS 746.1) For foreign-owned or controlled companies a registered office and management presence in Switzerland is required. Energy policy considerations and national security.